LEE LUNG KIT GARY v. TAI CHUNG MOTOR SUPPLIES CO

DCEC 597/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 597 OF 2014

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DECISION

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Introduction

1.  There are two summonses issued by the respondent and the applicant respectively for determination:-

(1)   summons issued by the respondent on 25 June 2014 for further particulars under Rule 18 of the Employees’ Compensation (Rules of Court) Rules ("the ECR"); and

(2)   summons issued by the applicant on 27 June 2014 for judgment on liability in default of answer, or alternatively, for an unless order for the filing of an answer, and for an order for specific discovery of CCTV recordings referred to by the respondent in the Form 2 (Notice by Employer of the death of an employee or of an accident to an employee resulting in death or incapacity, hereinafter referred to as “the Form 2”) dated 23 May 2012.

Procedural history

2.  The Application in these proceedings was filed on 24 March 2014.

3.  The Respondent’s Request for Particulars of the Application was filed by the respondent on 6 June 2014.

4.  The respondent further issued the present summons on 25 June 2014.  

5.  No Answer has been filed by the respondent up to now.

Respondent’s summons

6.  I shall deal with the respondent’s summons first.

Legal principles

7.  Rule 18(3) of the ECR provides that the court may disallow, with costs, any request for particulars which appears to the court to be unnecessary or vexatious.

8.  Regarding the giving of further particulars of pleadings, Order 18 rule 12(3B) of the Rules of the District Court provides that no order shall be made unless the court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.  Though the test of necessity is provided in Order 18 rule 12(3B) whereas the wording in Rule 18(3) of the ECR is phrased in a different way, I am of the view that in determining whether an application under Rule 18 is unnecessary, the test prescribed by Order 18 rule 12(3B) is a useful reference.

9.  In Midland Realty International Ltd v Wise Surplus Ltd [2002] 3 HKC, Deputy High Court Judge Gill held that the general effect of O 18 was that every pleading must contain the necessary particulars of any claim or defence such that the other side would not be taken by surprise.  The information sought by the defence was a matter of evidence to be proved at trial.  A representative of the plaintiff, with full knowledge of the history of the dispute, would give evidence and had file a comprehensive witness statement which set out in some detail the evidence upon which the plaintiff intend to rely.  It would be wrong to require this to be incorporated into the pleadings, even in gist High Court.

Discussion

10.  At the outset of the hearing, Mr Ng, counsel for the respondent, confirmed that the respondent is not pursuing items 3, 11, 12 and 14 of the Request for Particulars. 

11.  Mr Ng submitted that theparticulars are necessary for the respondent to prepare its Answer because the particulars would serve to tie the applicant down to his case. 

12.  With respect, the purpose Mr Ng is trying to achieve has never been the function of pleadings.  It is trite that the function of the pleadings is to define the real issues in dispute between the parties.  To that end, the applicant is required to state the material facts which constitute his cause of action.

13.  In the context of an employee’s compensation claim, rule 16 of the ECR has the following provisions:-

“16. Method of application:

(1) An employee or an employer or any other person who desires the determination of any question arising out of an accident in which compensation is or might be claimed shall lodge with the registrar of the court a written application in Form1, 2 or 3 in the Schedule accompanied by particulars containing -

(a) a concise statement of the circumstances in which the application is made and the relief or order which the applicant claims, or the question which he desires to have determined;

......”

14.  The applicant as an employee is required to commence these proceedings by lodging the prescribed Form 1 under the ECR.

15.  All the particulars requested are in relation to paragraph 3(3) of the Application.  Under paragraph 3(3) of the Application, the applicant is required to give the “date and place of accident, nature of work on which the applicant was then engaged and nature of accident and cause of injury”.  The respondent’s request for particulars should be viewed in that light.

Request 1 : At what time on 30 April did the alleged accident happened?

16.  Obviously, the request is excessive and unnecessary. 

17.  Mr Ng submitted that without the time of the alleged accident, the respondent is unable to know what accident the applicant is referring to.  I think unless the applicant is alleging more than one accident on the same day, there should not be any doubt as to what accident the applicant is alleging.

18.  In any event, it was reported in the Form 2 that the applicant alleged that the accident happened at 6.00 pm.

Request 2 : Please give full particulars of the steel ladder in question including:-

(i) the height of the ladder; and

(ii) the total number of rungs in the ladder

19.  Obviously, the request is excessive, unnecessary and to the extent of being vexatious. 

20.  The purpose of giving particulars in the Application is to let the respondent know the nature of the case he is going to meet.  In doing so, the applicant is not required to give minute details of everything the respondent wants, albeit in the name of tying down the applicant to his case.  The particulars the respondent is requesting have gone far beyond the nature of the applicant's case and is therefore unnecessary.

Request 4 : How was the ladder positioned right before the applicant fell down?

21.  The request is fishing for evidence.  How the ladder was positioned is a matter of evidence to be proved at the trial.  It would be wrong to require this to be stated in the Application: see Midland Realty (supra).  It has gone beyond the scope of paragraph 3(3) of the Application. 

22.  I find the request is unnecessary.

Request 5 : Whether the ladder was open in A-shape or folded and leaning against some objects?  If the ladder was folded and leaning against some objects what was the ladder leaning against?

23.  For the reasons stated in paragraphs 20 and 21, I find the request is unnecessary.

Request 6 : On which rung was the applicant standing before he fell down and what was the height of that rung from the ground?

24.  For reasons stated in paragraphs 20 and 21, I find the request is unnecessary.

25.  In any event, it was reported in the Form 2 that the applicant fell from the height of 4 feet.

Request 7 : What was the applicant exactly doing before he fell down?

26.  For reasons stated in paragraphs 20 and 21, I find the request is unnecessary.

Request 8 : What caused the applicant to slip from the steel ladder?

27.  For the reasons stated in paragraphs 20 and 21, I find the request is unnecessary.

Request 9 : Was the applicant holding the ladder with his hand(s) when he fell down?

28.  For the reasons stated in paragraphs 20 and 21, I find the request is unnecessary.

Request 10 : Whether the ladder fell down with the applicant when the alleged accident happened?

29.  For the reasons stated in paragraphs 20 and 21, I find the request is unnecessary.

Request 13 : Where was the pallet located in the warehouse at the time of the alleged accident?  How far was the pallet away from the ladder? Please provide a sketch showing the location of the ladder and the pallet in the warehouse at the material time.

30.  For the reasons stated in paragraphs 20 and 21, I find the request is unnecessary.

Conclusion

31.  I take the view that the requests of the respondent are unnecessary or vexatious.  The respondent’s summons is therefore dismissed.

Applicant’s summons

Legal principles on specific discovery

32.  In Paul’s Model Art GmbH & Co KG v UT Ltd [2006] 1 HKC 238 at 247C-G, the Court of Appeal summarised the principles for specific discovery under Order 24 rule 7 of the Rules of the High Court as follows:-

(1)   There is no jurisdiction to make an order under RSC, O 24, r 7, for the production of documents unless

(a) there is sufficient evidence that the document exist which the other party has not disclosed;

(b) the document or documents relate to matters in issue in the action; and

(c) there is sufficient evidence that the document is in the possession, custody or power of the other party.

(2)   When it is established that those three prerequisites for jurisdiction do exist, the court has a discretion whether or not to order disclosure.

(3)   The order must identify with precision the document or documents or categories of document which are required to be disclosed, for otherwise the person making the list may find himself in serious trouble for swearing to a false affidavit, even though doing his best to give an honest disclosure.

33.  In Allaha Ditta v Rodney Engineering Co Ltd, HCPI 981/2005, 29.12.2006, unreported, Suffiad J held that an application for specific discovery under Order 24 rule 7 may be made at any time.  Thus, the application of the defendant which was made 2 days before the filing of the plaintiff’s List of Documents was not premature.

Discussion

Paragraphs 1 & 2

34.  Rule 17(2) of the ECR provides that the respondent should serve a written answer within 21 days after service of the notice in Form 4 on him.  The notice was served on the respondent on 26 March 2014. 

35.  Rule 17(1) of the ECR provides:-

“(1) ... the registrar of the court shall cause a copy thereof to be served upon the respondent together with a notice in Form 4 in the Schedule informing the respondent that he must lodge with the registrar of the court such an answer as set out in paragraph (2) within the period therein stated, and that in default of his complying with that paragraph or of his appearing at a time and place fixed in the notice, such order may be made as the court deems just and expedient ...”

36.  Mr Ng submitted that without the particulars the respondent is requesting, the respondent is unable to file an answer.

37.  Given my ruling on the respondent’s summons, it seems that the respondent is putting the cart before the horse. 

38.  In the Form 2, the respondent stated that the allegation of the applicant is inconsistent with what was revealed in the CCTV recordings.  With that stance, the respondent should have no difficulty in formulating his answer.  The respondent should be able to file an Answer within the time limit provided by rule 17(2).

39.  That being the case, and in exercise of my discretion under rule 17(1), I direct the respondent to file an Answer within 14 days, failing which, judgment on liability shall be entered against the respondent with costs.

Paragraph 3

40.  The applicant is seeking specific discovery of CCTV (recordings) referred to by the respondent in the Form 2.

41.  The respondent opposed to the application on the ground that the application is premature.

42.  In view of the ruling in Allaha Ditta (supra), it is clear that the application can be made at any time. 

43.  Mr Ng, counsel for the respondent, submitted that if the respondent is ordered to give discovery of the CCTV evidence, the applicant will have the chance to conjure his case in light of what is captured by CCTV records. 

44.  In support of his proposition, Mr Ng cited a passage in Hong Kong Civil Procedure 2014, Vol 1 at paragraph 24/7/1:-

“The court has jurisdiction to order specific discovery under this rule even before service of the statement of claim, but the making of such an order generally calls for definition of the issues and should not normally be made. An application by a plaintiff for specific discovery was premature where an amended statement of claim had been served and the time limit for the defendant to file an amended defence and counterclaim had not yet expired,…”

45.  The case cited under that passage is the case of Skyforce Engineering & Management Co Ltd v Wan Chung Construction Co Ltd, HCCT45/1999, 9.6.1999, unreported.  In that case, Sakhrani J took the view that an application for specific discovery was premature because after the plaintiff had amended the Statement of Claim, the time limit for the defendant to amend its Defence and Counterclaim had not yet expired.  The court was told that there would be substantial amendments to the Defence and Counterclaim.  Hence, it was too early to launch the plaintiff’s application before the close of the pleadings.  Further, the plaintiff had already applied for summary judgment.  If the plaintiff succeeded on the application, that would be the end of the matter.

46.  Here, the applicant’s application is in an entirely different context.  The applicant has already stated his case in the Application.  The respondent, having known the applicant’s allegation, and having viewed the CCTV recordings, was disputing the allegation as early as 23 May 2012.  The worry of the applicant after viewing the CCTV recordings would fabricate his evidence is neither here nor there.  If the applicant were to fabricate his evidence, he had already done so at the time he lodged his complaint.

47.  If the submission of Mr Ng is to be accepted, this would mean that the specific discovery application can only be made after the parties have given their witness statements.  This is yet another example of putting the cart before the horse.  I do not think that can be right.  

48.  The CCTV recordings is clearly relating to the issue in this case and is in the possession of the applicant.

49.  For the above reasons, I consider that the applicant’s application should be allowed.

Conclusion

50.  In respect of the applicant’s summons, I order that:-

(a) unless the respondent file and serve its Answer within 14 days from the date of this Decision, judgment on liability be entered against the respondent with costs;

(b) the respondent shall within 14 days from the date of this Decision make an affidavit stating whether the CCTV recordings referred to by the respondent in   the Form 2 dated 23 May 2012 is or have at any time been, in its possession, custody or power, and if not then in his possession, custody or power, when it parted with it and what has become of it.

Costs

51.  Costs shall follow the event.  I order that the respondent shall pay the applicant costs of both applications.

52.  By summary assessment, the costs of the applicant is allowed at $19,800.